Constitutional Sunsetting?: Justice O'Connor's Closing Comments in Grutter

Abstract

Most Supreme Court watchers were unsurprised that Justice Sandra Day O’Connor’s vote proved pivotal in resolving the University of Michigan affirmative action cases; indeed, Justice O’Connor has been in the majority in almost every case involving race over the past decade, and was in the majority in each and every one of the 5-4 decisions the Court handed down across a broad range of difficult issues last Term. Some smaller number of observers were unsurprised that Justice O’Connor decided (along with the four Justices who in the past have voted to allow latitude with regard to race-based affirmative action programs) to uphold the kind of flexible and individualistic use of race to promote a diverse student body embodied in the University of Michigan Law School’s admission policy. Justice O’Connor had often cited Justice Powell’s opinion in Bakke favorably, and just two terms ago she had voted with the more “liberal” Justices in a 5-4 decision that permitted race consciousness in a voting redistricting setting. But perhaps most were surprised by a comment Justice O’Connor made from the Court at the end of the Grutter opinion: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” In this short essay, we explore that provocative sentence, and tease out some of the doctrinal and jurisprudential implications and connections that it might be understood to raise.